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upon their verdict, in sending, by with respect to the law of the case or their request, to the jury room, the the verdict to be returned by them. official stenographer by whom the Not only was this action of the court evidence had been taken on the de- a violation of the provision of $ 249 fendant's trial, and permitting him, of the Criminal Code, which rewhile there alone with the jury, to quires, when the jury desires to be read from his stenographic notes to informed upon a point of law, that them, with his explanations of same, they should be brought into court such parts of the evidence so taken and the information given by the by him as they desired to hear. In court in the presence of, or after noexpressing our condemnation of this tice to, the accused and his counsel, action of the trial court, we, in part, but it was calculated to put the court said: “In the face of so grave an in a position to be misjudged, and error as that committed by the trial his motive questioned. 12 Cyc. p. court in this case, the appellate court 681; Goode v. Campbell, 14 Bush, should not stop to weigh probabili- 75.ties, or try to discover from the rec- We have been referred to no case ord whether it was prejudicial to the in which it appears to have been accused, but must assume that the held that a meeting and conference error amounted to such an invasion between court and jury, in the priof appellant's constitutional rights vacy of the latter's room, and in the as to deprive him of a fair and im- absence of the defendant and his partial trial.” The opinion cites the counsel, did not constitute reversible following civil cases, in which it was error. It is not intimated by counheld that such an error as that com- sel for appellant that the trial judge, mitted by the court in Kokas v. Com. whose conduct in meeting and consupra, compelled the setting aside of ferring with the jury in their room the verdict: Luttrell v. Maysville & is here complained of, was actuated L. R. Co. 18 B. Mon. 291; Louisville, by any improper motive, nor is there C. & L. R. Co. v. Cavens, 9 Bush, anything appearing in the record 559, 15 Am. Neg. Cas. 154; Louis- that tends to impute to him such a ville, H. & St. L. R. Co. v. Morgan, motive; but the fact that in taking 110 Ky. 740, 62 S. W. 736.

the action referred to his purpose In Bentler v. Com. 143 Ky, 503, was to advise and assist the jury in 136 S. W. 896, the trial court com- the performance of a duty with mitted precisely the same error com- which they were charged did not plained of in the instant case; but, clothe him with authority to deprive as much of the opinion had previous- the appellant of a right guaranteed ly been devoted to the consideration him, both by the Constitution and of another error that also compelled statutes of the state; and, as the the reversal of the judgment, the record fails to affirmatively show constitutional objections to the ac- that the appellant was not thereby tion of the trial court constituting prejudiced in his substantial rights, the error in question were not dis- we are constrained to hold that the cussed, it being deemed sufficient to action of the trial judge complained show, as was done, that the error of must be declared reversible erwas one that also resulted from the ror. trial court's violation of the provi- The appellant's complaint of error sions of $ 249, Criminal Code. How- in the admission of incompetent eviever, in considering it, we said: dence, contained in his second con“The trial judge likewise erred in tention, seems to be devoid of merit. entering the room where the jury In order to understand this contenwere deliberating and, in the ab- tion it should be stated that the subsence of accused and his counsel, an- ject of the alleged forgery for which swering questions there propounded the appellant was indicted was a by the jury, and giving them advice written receipt, executed to him by (200 Ky. 509, 255 8. W. 125.) one W. M. Hamilton, which reads as which is questioned, is produced, a follows:

photographic enlargement through a "March 16th, 1922.

magnifying lens may be employed. "Received of C. F. Puckett seven

Wigmore, Ev. § 797,

Evidence-forty dollars, payment on note.

subsec. 4, p. 906; 22 gery-enlarged “W. M. Hamilton.”

C. J. § 1121, p. 918.

photographs.

In First Nat. Bank v. Wisdom, 111 According to the testimony of

Ky. 135, 63 S. W. 461, wherein the Hamilton, the amount paid him on

genuineness of the signature to a the note by the appellant was only note was involved, it was held that $7, and the receipt therefor, as writ- photographs of the signature in ten by appellant and signed by him question, and others of the same (Hamilton) at the time of the pay

person, were properly admitted as ment, was for the $7, but that when

evidence; the court in so holding next seen by him the word "seven" saying: “But they were only a originally appearing therein had

more enduring form of exhibiting been changed to "seventy," by add- the signatures to the jury as under ing to the paper, in writing, the let

a magnifying glass. Such evidence ters "ty" after and at the end of the

has often been held competent." word "seven.” It was further testi- The record presents no ground fied by Hamilton that the changing for the appellant's complaint of erof the word "seven" into "seventy'

ror on the part of the trial court in was a forgery, and this is the for- excluding competent evidence ofgery for which the appellant was in

fered in his behalf, as it fails to dicted.

show the exclusion of any such eviThe admitted evidence complained dence. of as incompetent were certain pho

The appellant's final contention tographs made of the receipt in that the verdict of "Not guilty" question by one Earp, who, upon be- should have been directed in his ing introduced as a witness, testified

behalf upon the evidence of the comthat the photographs were made by monwealth, and that the verdict rehim, also as to their accuracy, and

turned is flagrantly against the evithat they showed an enlargement of

dence, is, in our opinion, also withthe receipt. The appellant's coun- out merit. As the case will be sel, without stating the reasons retried, we will not discuss in detail therefor, objected to the exhibition

the evidence, or express any opinion of the photographs to the jury. The as to its weight or effect, further objection was overruled, and the than to say that, while unusually photographs introduced, and to this conflicting, it was sufficient to reruling appellant excepted.

We see

quire the submission of the case to no reason for holding the photo the jury. graphs incompetent as evidence. It For the reasons indicated, the seems to be a well-recognized rule of judgment is reversed for a new trial, the law of evidence that, where the and such further proceedings as may original writing, the genuineness of not be inconsistent with the opinion.

ANNOTATION.

Communications between jurors and others as ground for new trial or reversal

in criminal case.

I. In general, 104.
II. Communications between jurors and

outsiders, 104.
III. Communications between judge and

jurors, 104.

IV. Communications between jurors and

officials or attendants, 105.
V. Communications with juror not

serving in the case, 106.
[No later decisions herein.]

VI. Communications between jurors and

witnesses, 106. VII. Communications between jurors and

counsel, 107.

VIII. Communications between jurors and

members of family, 107.
IX. Written communications, 107.

[No later decisions herein. ]
X. Telephone conversations, 107.

291,

1. In general.

tor v. State (1923) Okla. Crim. Rep. This annotation supplements the -, 211 Pac. 1057, infra, VIII. earlier annotation in 22 A.L.R. 254. And in Stamp v. Com. (1923) 200

There appears to have been little, if Ky. 133, 253 S. W. 242 (manslaughany, general discussion in the recent ter), the act of the wife of the accused cases, except upon the lines already in going up to the jury box and beginset forth in the previous annotation. ning to make a statement, whereupon

As to conduct of court in discharg- she was stopped, the jurors not knowing a jury during a trial, in conse- ing who she was or what she was goquence of a juryman's reporting a ing to say, was held to be not ground conversation between himself and an

for a reversal. outsider where there was a question

But in Toussaint v. State (1922) 92 whether the defendant had consented Tex. Crim. Rep. 374, 244 S. W. 514 to the discharge of the jury, as bear- (murder), a new trial was granted by ing on the matter of former jeopardy, reason of conversations between jurysee State v. Thompson (1921) 58 Utah, men and women prisoners, and also a A.L.R. 199 Pac. 161.

conversation between one of the ju

rors and his wife, where the state II. Communications betueen jurors and failed to rebut the presumption (exoutsiders.

isting in that state) that such con(Supplementing annotation in 22

versations were injurious to the A.L.R. 255.)

accused. The court said: "If a The rule that a verdict will not be

juror during his retirement desires to disturbed because of a conversation hold an innocent conversation with between a juror and a stranger, where

one outside, it is no insurmountable it was not prompted by a party and it hardship to require that he obtain the does not appear that any injustice was

permission of the court and observe done to accused, or, at least, if it ap- the safeguards that are prescribed by pears that he was not prejudiced, has the statute. If he chooses not to do been further supported in the follow

so, and holds the conversation against ing cases:

the mandate of the statute, then the In People v. Golsh (1923) 63 Cal. rule which requires that the person App. 609, 219 Pac. 456 (murder), a with whom he talked be presented to jurywoman's talk with the father of

rebut the presumption of injury is the deceased in an excited manner, neither so onerous nor unjust as to during which she used violent gestic

justify its disregard." ulations, was held to be not sufficient to raise the presumption that the ju

III. Communications between judge and ror was improperly influenced, in the

jurors. absence of any showing that the talk (Supplementing annotation in 22 related to the case on trial, so not to

A.L.A. 261.) call for a reversal, although it was a In a few recent cases the fact that grave impropriety.

the trial judge gave further instrucIn Johnson v. State (1924) Okla. tions in the jury room has been held Crim. Rep. 223 Pac. 890 (man- to be reversible error. slaughter), a conversation between a Thus, in People v. Beck (1922) 305 juror and a neighbor, which was in- Ill. 593, 137 N. E. 454 (unlawfully terrupted by the prosecuting attor- possessing intoxicating liquor), where ney cautioning the juror "not to talk the trial judge read to the jury some in this way," was held to be not of additional instructions, at its request, sufficient importance to warrant set- having apparently gone into the jur ting aside the verdict. See also Proc- room to do so, the judgment was re

rersed because the defendant was not dered. Woodward v. State (1922) 130 present and had not waived his right Miss. 611, 94 So. 717 (manslaughter). to be present.

And in Lemons v. State (1922) 155 And in the reported case (PUCKETT Ark. 59, 244 S. W. 1 (liquor law violav. Com. ante, 96) (forgery), a new tion), there was held to be no error by trial was granted on account of the reason of a juror having come into the trial judge entering the jury room of court room and handed the judge a his own accord, about an hour after paper on which a question was writthe jury retired, and giving them di- ten, and the judge having handed back rections as to their duties respecting to the juror the same paper, after the finding of a verdict, in the absence writing on it a reply to the question, of the accused and his counsel; the where defendant's counsel was prescourt answered the contention that ent and did not make any objection at such conduct was not prejudicial to the time. the rights of the accused, by holding And in State v. Drakeford (1922) that its probable effect was to hasten 120 S. C. 400, 113 S. E. 307 (unlawthe jury's deliberations. But see Dun- fully keeping in possession and storbar v. Com. (Ky.) infra.

ing intoxicating liquor), a remark by Likewise, in Osborne v. State (1922) a judge to a foreman, upon the latter 93 Tex. Crim. Rep. 54, 245 S. W. 928 reporting a disagreement, "Oh, but (theft), a reversal was granted in you must agree; we couldn't consider consequence of a trial judge entering a mistrial in this case," was held not the jury room, in response to the prejudicial error in view of the cirjury's request for further instruction, cumstances, the judge having smiled and making a verbal statement to the when he said this, and having subsejury, as to the nature of which state- quently stated that no juror was exment several different versions were pected to surrender his conscientious given, the court holding:

"In no

convictions. event should the trial judge enter the In Phares v. State (1923) 158 Ark. room in which the jury are engaged in 156, 249 S. W. 551 (voluntary mantheir deliberations, for the purpose of slaughter), there was no reversible discussing the charge or any phase of error where, after the jury had twice the case, or permitting any of the reported a disagreement, a juror remembers of the jury to do so. To the tired with the judge and the prosecujury, not only the language of the ting attorney and told the question judge trying the case, but his manner, which was hanging the jury, whereupis of peculiar weight, and they may on the judge gave the jury instrucplace upon it interpretations not in- tions upon that question, there having tended.”

been no abuse of the judge's discreBut in Dunbar v. Com. (1921) 192 tion. Ky. 263, 232 S. W. 655 (stealing), the There was no error in a written recircumstance of a jury calling in the quest by a jury asking a judge trial judge and asking his advice as to whether a verdict of guilty in the first finding another guilty besides the ac- degree, with recommendation of excused, and the judge advising the ju- treme mercy, would be permissible, rors to see the prosecuting attorney

and the judge's reply that if the jury about starting proceedings against the

insisted on an answer he would have other, was held to be an irregularity

to send for the defendant. Com. v. which did not affect the verdict.

Myma (1924) 278 Pa. 505. 123 Atl. And a motion for a new trial in con

486 (murder). sequence of a trial judge going into IV. Communications between jurors and the jury room, at the request of a ju

officials or attendants. ror for information as to penalties (Supplementing annotation in 22 that might be imposed on th accused A.L.R. .) has been held to have been properly In Taylor v. State (1922) 18 Ala. overruled where no objection was App. 466, 93 So. 78 (violation of promade until after the verdict was ren- hibition law), a new trial was granted

a

in consequence of a conversation be- trial was denied where a sheriff was tween a sheriff and a juryman, upon alleged to have conversed with memthe ground that it might have affected bers of the jury, upon the ground that the verdict.

misconduct was not proved and it was In Holladay v. State (1924) Ala. not shown that the verdict was affectApp. -, 101 So. 86, (assault with in- ed. tent to murder), a sheriff's statement See also Allen v. State (1923) 155 to a jury that the judge might keep Ga. 332, 116 S. E. 534 (rape), where them together 48 hours was a valid jurors were not allowed to impeach ground for new trial.

their verdict by testifying as to a bailAnd in Mills v. State (1924) Tex. . iff's remark to them that they were Crim. Rep. - 260 S. W. 578 (murder), not coming out until a verdict was there was held to have been reversible reached. error by reason of an officer's conduct

V. Communications with furor not serv. which was calculated to prejudice the

ing in the case. rights of the accused, where the officer

No later decisions herein. For had told the jury that in case of disagreement the judge would hold them

earlier cases, see annotation in 22 for another week and send them to an

A.L.R. 267. other county, and where he had also VI. Communications between jurors and told them of an instance of a juror

witnesses. having been whipped in the jury room

(Supplementing annotation' in 22 for not agreeing with the others. A.L.R. 268.)

But a motion for a new trial upon In People v. Magee (1922) 60 Cal. the ground that a bailiff spent the

App. 459, 213 Pac. 513 (assault), night with a jury, and took part in its conversation between a juror and a discussions of the case, has been held

witness relating only to trivial matto have been properly overruled in the

ters, and having no relation to the court's discretion, where this objec- case on trial, was considered to be imtion was sufficiently met and ex- prudent, but not ground for a new plained. Brinkins v. State (1922) 29 trial. Ga. App. 189, 114 S. E. 721 (nature of In State v. Kennedy (1923) 195 crime not disclosed).

Iowa, 1059, 191 N. W. 877 (burglary), In State V. McReady (1923) 154 a motion for a new trial on the ground Minn. 366, 191 N. W. 816 (indecent lib

that a juror had talked with a witness erties with child), a sheriff's remark, was held to have been properly overin reply to a juryman's question, that ruled, where what they had talked the jury might be kept out a week in about was not shown, and the judge case no agreement was reached, was had cautioned the jurors against talknot considered to have been of suff

ing to any persons about the case on cient consequence to affect the result. trial.

And in State v. Broughton (1923) A conversation during a recess, be154 Minn. 390, 192 N. W. 118 (carnal

tween a jurywoman and a witness on knowledge of female under eighteen), matters of general interest, without a defendant was refused a new trial mention of the case that was being that was claimed by reason of the tried, and which the jurywoman stated bailiff having opened the jury-room that she forgot upon retiring to the door on a Sunday morning, when the jury room, has been held to be not trial judge had come into the court- ground for a new trial, but merely a house and having told the jurors that case where a juror, innocent of all the judge might go home and they wrongdoing, was entrapped into a might have to stay in their room all seeming impropriety. State v. Guy day, the judge having been satisfied (1922) 121 Wash. 534, 209 Pac. 673 that no rights of the accused were (grand larceny). prejudiced.

In People v. Rodgers (1923) 120 In Williams v. State (1923) Ind. Misc. 166, 197 N. Y. Supp. 805, 40 N. Y.

139 N. E. 657 (burglary), a new Crim. Rep. 256 (grand larceny), the

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